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IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2016
AYAMGA YAKUBU AKOLGO - (Plaintiff/Respondent)
MOHAMMED AHMED ALHASSAN AND 3 OTHERS - (Defendants/Appellants)
DATE: 3RD NOVEMBER, 2016
CIVIL SUIT NO: H1/37/2016
JUDGES: M.OWUSU (J.A.) – PRESIDING, DORDZIE (J.A.), KWOFIE (J.A.)
LAWYERS:
MR. NASH ADJEI PLAINTIFF/APPELLANT
ALHAJI FAROUK SEIDU DEFENDANT/RESPONDENT
JUDGEMENT
MARIAMA OWUSU, J.A.:
On 5th day of February, 2015, the High Court, Accra granted an application for certiorari requested by the applicant and quashed the decision that resulted in the reduction of his rank and salary. The court further granted an order of mandamus compelling the Ghana Police Force to ensure that the Central Disciplinary Board, properly constituted presides over the matter to conduct the investigations into the alleged improper conduct of the applicant and awarded Gh¢40,000.00 damages in favour of the applicant for the trauma and distress caused him by the reduction in his rank and salary.
Dissatisfied with the decision of the court, the applicant appealed to the Court of Appeal on the following grounds:
i. The award of Gh¢40,000.00 damages to the plaintiff is too high and excessive.
ii. The learned trial Judge did not address her mind to the fact that the respondents in the case were carrying out their statutory duty under the Police Service Regulations 2012 (C. I. 76) and that assuming they were not granted any immunity against liability, they should not be fixed with such high amount.
iii. The learned trial Judge failed to advert her mind to the Police Service Regulations 2012 (C. I. 76) which requires or entitles the plaintiff/respondent to be recompense for any loss of salary suffered.
iv. Further grounds of appeal to be filed on receipt of record of proceedings.
The reliefs sought from this court is for an Order to set aside the damages awarded or alternatively to reduce same drastically to reflect the realities of the situation.
On 16-4-2015, the defendants/appellants filed notice of additional grounds of appeal. They are:
v. The learned trial Judge’s ruling that the plaintiff/respondent should be paid
Gh¢40,000.00 damages is inconsistent with her ruling for the defendants/respondents/appellants specifically the Police Administration to reconstitute the Central Disciplinary Board to investigate the alleged misconduct of the plaintiff/respondent suggesting directly or indirectly that the matter was not conclusively determined to warrant award of damages.
vi. Wrongful exercise of discretion by holding that the plaintiff/respondent should be paid damages of Gh¢40,000.00 the trial court wrongfully exercised its discretion when it omitted to have due regard to Regulation 105 (10) of the Police Service Regulation 2012 (C. I. 76) which govern the payment of monetary reliefs in such cases.
vii. The learned trial Judge failed to determine the issue that the order to make entries in the book introduced by 3rd defendant/respondent/appellant (i.e. DCOP Ransford Ninson) conduces to Article 200 (3) of the 1992 Constitution (i.e. Maintenance of Law and Order) and therefore does not conflict with Police Service Instructions No. 29.
viii. The judgment is against the weight of evidence.
Before dealing with the arguments canvassed in support and against this appeal, I will give a brief background of the case.
At the court below, the plaintiff/applicant/respondent (herein referred to as respondent filed on an application for an order of certiorari directed at the 1st defendant/respondent for the purpose of quashing the order of reduction in rank of the respondent from Superintendent of Police to Deputy Superintendent of Police dated 28-2-14 on grounds of nullity. The respondent further prayed for an order of mandamus directed at 1st defendant / respondent/appellant to appoint a competent person to chair the Central Disciplinary Board of the Ghana Police. In the 57 paragraph affidavit that accompanied the application, the respondent’s case in sum is that, the 1st defendant/respondent/appellant’s (hereinafter referred to as appellant) decision to reduce his rank from Superintendent of Police to Deputy Superintendent of Police based on an Internal Service Inquiry conducted by Chief Superintendent Ernest Akrasi K. Mensah was fraught with prejudice, bias and errors of law patent on the face of the record. The respondent deposed further that the appellants are all employees within the Public Services of Ghana under Article 190 (1) of the 1992 Constitution. Their relations and conduct are governed by the Constitution, The Police Service Act 1970 (Act 350), The Police Service Regulations 2012 (C. I. 76), the Service instructions of the Ghana Police and other Rules and Regulations as approved by the authority.
At the material time of the incident that resulted in the suit, the respondent was a Senior Police Officer of the Ghana Police Service and was resident at Sagakope in the Volta Region. Whilst the 1st appellant was the Inspector General of Police, the 2nd appellant was the Chairperson of the Central Disciplinary Board of the Ghana Police Service. The 3rd appellant was then the Western Regional Police Commander and the 4th appellant is the Attorney General of the Republic of Ghana.
The respondent, then the Kwesimintim District Police Commander was under the supervision of the 3rd defendant/respondent/ appellant who was the Western Regional Police Commander. The respondent deposed further that in August 2012, the 3rd appellant introduced a new ‘Book’ to his unit and instructed the applicant to make entries of occurrences. According to the respondent, he drew the attention of the 3rd appellant to the fact that the introduction of the book did not follow and satisfy the requirements imposed by the Police Service instructions since such actions is the preserve of the Inspector General of Police or the 3rd appellant should have sought and obtained the express permission and or authorization of the IGP prior to the introduction of the ‘Book’.
Secondly, the instruction to him from 3rd appellant ordering him to make entries into the new book, constituted a variation or amendment of the Service Instruction. Thirdly respondent’s inability to make the entries into the book was partly due to his ill-health and his occupation with his statutory duties and lastly the respondent refused to make the entries into the said book claiming such entries were typically assigned to Junior Officers in the Station Orderly Category and not Senior Officers whose administrative roles was mostly limited to supervision.
The respondent back his case with Police Service Instruction (S I) 38 (a), and (C I) 38 (4). Based on the foregoing, the respondent refused to make the entries into the book as required by the 3rd appellant. This did not go down well with the 3rd appellant. The respondent was therefore formally charged with two counts of Disciplinary Offence. The 1st appellant, the IGP gave a directive to the Central Disciplinary Board and a formal proceedings was therefore lunched against the conduct of the respondent under Regulation 4 (3) (c) of the Police Service Disciplinary Proceedings Regulation 1974 (L I 1993). An adjudicator in the person of Chief Superintendent of Police, Mr. Ernest Kirk Akrasi-Mensah was appointed to inquire into the conduct of the respondent.
Subsequently, the 1st appellant wrote to the respondent saying after reviewing the findings of the adjudicator, a sentence of reduction in rank from Superintendent of Police to Deputy Superintendent of Police with a commensurate reduction in salary was imposed on the respondent. The respondent concluded that the actions of the appellants’ were an abuse of the due process and this has caused him immense psychological and mental trauma, anxiety, torture and financial hardship. The respondent also questioned the validity of the composition of the Central Disciplinary Board that initiated the proceedings against him since according to him, the Chairperson of the Central Disciplinary Board is the Commissioner of Police, Ms. Rose Bio Atinga who is not the Deputy Inspector General or the most Senior Schedule Officer at the Headquarters. He stated that, the most Senior Schedule Officer at the Headquarters was Commissioner of Police, Mrs. Joana Osei-Poku and not Ms. Rose Bio Atinga.
Consequently, the respondent argued, the Board was not lawfully constituted and therefore lacked the competence or capacity to conduct its work effectively. He referred to Regulation 95 of C. I. 76.
In their affidavit in opposition, the appellants’ denied the respondent’s claim. In particular, whilst admitting the introduction of the new ‘Book’ in August 2011, they indicated that the IGP being the head of the police service delegated his powers to other senior members of the service to ensure the smooth running of the police force. Therefore, the express authorization was not necessary to the 3rd appellant in order to introduce the new ‘Book’ as the right to do so was already vested in him by Section 4 (6) of the Police Service Act. Secondly, the appellants deposed that, the charge proffered against the respondent was that, the latter disobeyed the Orders of the Regional Commander which is an offence under LI 880.
Consequently, the respondent was properly charged under Regulation 21 (2) (a) of LI 880. On the issue of the improper composition of the Central Disciplinary Board, the appellants deposed that same was properly constituted as the person envisaged by the respondent to Chair the Disciplinary Board was out of the jurisdiction at the material time and could therefore not chair same. On the issue of bias, prejudice, etc, the appellants deposed that it was shown that the 3rd appellant had supervisory control over the respondent.
Therefore the refusal of the respondent to obey his superior’s instructions is tantamount to unprofessional conduct making the respondent liable for failure to obey superior orders. The appellants invited the court to weigh the respondent’s interest as against the institutional interest of the Police Service which favours the exhaustion of administrative processes before resorting to the law court.
See paragraphs 1 to 22 of the appellants’ affidavit in opposition filed on the 26-3-2014.
After going through the respective affidavits in support and in opposition for the application for Judicial Review in the nature of certiorari, the High Court quashed the Order reducing the rank of the respondent from Superintendent to Deputy Superintendent of Police imposed on him and ordered the Police Administration to reconstitute the Central Disciplinary Board to investigate the alleged conduct of the respondent. In addition, the High Court awarded the respondent Gh¢40,000.00 damages for trauma and stress hence this appeal.
In arguing the appeal, counsel for the appellants submitted that, by holding that the respondent should be paid damages of Gh¢40,000.00, the trial court wrongfully exercised its discretion. This is because the court omitted to have due regard to Regulation 105 (10) (a) of the Police Service Regulations, 2012 (C. I. 76) which governs the payment of monetary reliefs in such cases. Counsel continued that, even though the said grounds were not raised during the trial as the award of Gh¢40,000.00 damages was made in the ruling.
It was never part of the reliefs sought by the respondent in his application for Judicial Review. It was only referred to in passing in his statement of case and even here the relief asked was for Gh¢20,000.00. Counsel urged us to apply the principle in the case of Attorney General Vs. Foroe Atlantic Co. Ltd. [2005-2006] SCGLR 271, 279; and Ntem Vs. Ankwandah [1977] 2 GLR, 452, CA. He then submitted that, the Police Service Regulation 105 (10) (a) of CI 76 is the substantial legal issue here and will not require additional evidence to determine same.
Counsel continued that, in the instant case, the Service Enquiry that resulted in the reduction in rank of the respondent was set aside by an order of certiorari at the trial court. It is therefore deemed that the respondent had been absolved from any punishment imposed and therefore Regulation 105 (10) of the Police Service Regulations, 2012 (C I 76) would come into play here. Additionally, counsel for the appellants argued, in awarding damages to the respondent, the trial Judge should not have ignored Regulations 105 (10) (a) of the Police Service Regulations 2012 (C I 76) which govern and regulate monetary payments arising out of Police Service Disciplinary Proceedings. These are statutes binding on the court else the decision of the court would be rendered faulty on grounds of being per incuriam.
Counsel referred to the case of Ababio Vs. Republic [1966] GLR 422 SC where it was held that a trial court is entitled to examine the law to satisfy itself as to a particular law applicable to the facts before it.
Secondly, counsel argued, the award of Gh¢40,000.00 damages to the respondent carries with it the grave danger of frustrating and stultifying the legislative mandate of the Ghana Police Service and by extension the appellants to investigate and trial erring Police Officers of all instances of misconduct. Thirdly, the award of Gh¢40,000.00 damages from the point of view of public policy is not practicable. This is because this would stultify Police Service Enquiry Proceedings and defeat the intention and purpose for which the legislature made provision for the payment of monetary considerations for such trials.
Counsel therefore invited us to construe Regulation 105 (10) (a) of C I 76 purposively to take account of the intention and policy consideration of the legislature and set aside the damages awarded. This is especially so since the salary withheld from the respondent had been paid to him to give meaning and effect to Regulation 105 (10) (a) of C I 76.
In response to the above submissions the respondent argued that the appellants misconstrued the award of damages in respect of Regulation 105 (10) (a) of C I 76 which deals with INTERDICTION which talks about restoration of withheld salary of an interdicted officer Not damages which is a court discretion if the circumstances of the case requires the award of damages. He submitted that the restoration of rank as a result of certiorari and the necessary refund of reduced earnings to the respondent are distinct from restoration of withheld salary of an interdicted officer acquitted. But more importantly, Regulation 105 (a) of C I 76 cannot oust the power and authority of the High Court to award damages as the justice and circumstances of the case demands. The respondent then launched into the circumstances where the court would award damages, either special or general or both.
He then submitted that, Order 55 rule 3 of C I 47 empower the court below to make orders in the nature of damages if the facts and circumstances of the case requires. These damages are statutory in nature and compensatory in character. No violation of the law is occasioned by the High Court in the award of the damages. The award was fair, reasonable and proper exercise of discretionary authority and an appellate court cannot disturb the proper exercise of discretionary power. He referred to the cases of Abu Ramadan & Anor. Vs. Electoral Commission & Attorney General, suit no. J1/14/16 unreported and Balloms Vs. Mensah [1984-88] 1 GLR 724.
From the notice of appeal and the grounds of appeal, the appellants’ complaint is in respect of the award of Gh¢40,000.00 damages to the respondent. According to the appellants, the award is inconsistent with Regulation 105 (10) (a) of (C I 76) which governs the payment of monetary reliefs in such cases. Secondly, the award is wrongful exercise of discretion by the trial court.
In the ruling in contention, the trial High Court in analyzing and determining the issues at stake, has this to say:
“For the applicant to succeed in this application therefore, he must satisfy the court that the decision made by the police force to reduce his rank and salary was either made by a body that lacked jurisdiction to preside over the matter, or a body which had jurisdiction to hear the matter but acted in excess of the powers conferred on it. Alternatively, the plaintiff-applicant must prove that there was an error on the face of the record, or that the decision itself was illegal, irrational or contrary to statute or a constitutional provision.
Then again, the applicant’s case succeeds if he is able to establish that the decision complained of, was either reached or granted contrary to the rules of natural justice.
Noteworthy is the fact that the court must keep at the fore that Judicial Review has nothing to do with the merits of the case per se. Its focus is on the due process of the law and in the words of Justice Twum (JSC) in the case of The Republic Vs. Court of Appeal, Accra; Ex Parte Ghana Cable Ltd. (Barclays Bank Ghana Ltd.; Interested Party) [2005-2006] SCGLR 207:
“…A certiorari is not concerned with the merits of the decision. It is a complaint about jurisdiction and some procedural irregularities like the breach of the rules of natural justice.”
Accordingly, this court will not delve into or focus on the merits of the determination or the lawfulness or legitimacy of the decision handed down by the Police Service. This court will focus on the issues that sanction the granting of a certiorari and or a mandamus. If the conditions required in order for the reliefs sought to be granted are found to be present in the applicant’s case then he succeeds.”
The trial Judge then enumerated the several complaints grounding the certiorari application cited by the respondent which included the rule of bias and breaches of law and procedural impropriety which the respondent raised but were ignored. She referred to the cases of The Republic Vs. High Court, Denu; Ex Parte Agbesi Awusu III (No. 1) (Nyonyo Agboada Sri III Interested Party) [2003-2004] SCGLR 864 and The Republic Vs. Committee of Inquiry into Nungua Traditional Affairs; Ex Parte Odai IV and Others [1996-1997] SCGLR 401, and came to the conclusion that the rules of Natural Justice were breached and granted the application for certiorari and quashed the decision that resulted in a reduction in rank and salary of the respondent. The trial court then went on to make some consequential orders as follows:
1. The court granted an Order of Mandamus compelling the Police Force to ensure that the Central Disciplinary Board, properly constituted presides over the matter to conduct the investigations into the alleged improper conduct of the applicant.
2. Damages of Gh¢40,000 awarded in favour of the respondent for the trauma and distress caused him by the reduction in rank and salary.
As rightly pointed out by the Court below, certiorari is not concerned with the merits of the decision being complained about, but jurisdictional infractions and breaches of the rule of natural justice. See the case of Republic Vs. High Court, Accra; Ex Parte Ghana Medical Association (Arcmann-Ackummey Interested Party) [2010] 2 SCGLR 768, 769 where their Lordships held in holding (1) that:
“An order of prohibition would issue to prevent a court or tribunal from exceeding or continuing to exceed its jurisdiction on grounds of want or excess jurisdiction, error of law on the face of the record; failure to comply with the rules of natural justice and breach of the Wednesbury Principle, namely, that an administrative action or decision would be subject to judicial review on grounds that it was illegal or procedurally improper. And the difference between certiorari and prohibition was only that whereas certiorari would look to remedy past errors, prohibition would look to the future to prevent what was to be done from being done…”
The question is, what is the effect of the Order granting the respondent’s application for Certiorari and the Order of Mandamus? By granting the application for certiorari and quashing the decision of the Central Disciplinary Board and compelling the Police Force to ensure that the Central Disciplinary Board, properly constituted, preside over the matter, the status quo before the respondent was investigated prevails. In other words, the respondent’s reduced rank and salary were restored with the rider that the charge preferred against him should now be gone into. This being the case, we consider the quantum of damages awarded him to be excessive.
The respondent has argued that the reduction in his rank and salary does not fall under Regulation 105 (10) (a) of C I 76 as he was not interdicted. Regulation 105 (10) (a) of C I 76 provide that:
“where the disciplinary proceedings against an officer results in the acquittal of the officer, the whole of the salary withheld from the officer shall be restored to the officer.”
Our reaction to the submission on Regulation 105 (10) (a) of C I 76 is that this regulation is not applicable to the case under consideration, both on the fact and on the ratio. By the pronouncement of the High Court, the respondent has not been acquitted of the charges preferred him. It only said the procedure leading to the reduction in his rank and salary was flawed and therefore the proper procedure should be followed.
It is for this reason that the appeal would be allowed on grounds (i), (iii) and the Additional (v) and (vii) and they are hereby upheld.
This brings us to ground (viii) which states that the judgment is against the weight of evidence.
What this grounds means is that, we should review the entire record of appeal to ascertain whether indeed the affidavit and the documentary evidence adduced at the trial supports the findings and conclusion arrived at by the trial Judge. See the case of Abbey & Others Vs. Antwi V. [2010] SCGLR 17, 20. In the instant case, the trial Judge found as a fact that the rules of natural justice was breached and thereby quashed the decision of the Central Disciplinary Board of the Police Service and she further ordered that the Police Force should ensure that the Central Disciplinary Board, properly constituted presides over the matter and conduct the investigations into the alleged improper conduct of the respondent.
So the question is, was this finding supported by the evidence on record? We think so. This is because the allegation of bias or a real likelihood of bias was raised against the Adjudicator. The trial Judge numerated about nine of the said complaint forming the basis of bias or perception of bias against the respondent.
For instance, the respondent submitted a request two weeks before the date on which proceedings were to go on but the Adjudicator failed to give the former the record of proceedings covering the 3rd appellant’s evidence for the purpose of cross examination. Again, throughout the trial, the “Record Book” in question was not made available for the said entries to be examined, or for the issue of deliberate refusal to make entries to be considered.
Again, when the 3rd appellant was to be cross examined by the respondent, the trial was moved from the routine Adjudicating Officer’s office in Sekondi to the 3rd appellant’s office in Cape Coast despite vehement protests by the respondent among others.
We have already come to the conclusion that by quashing the proceedings leading to the reduction in rank and salary of the respondent and ordering the Central Disciplinary Board, properly constituted to preside over the matter to conduct investigations into the alleged improper conduct of the respondent, the slate is wiped clean and the respondent’s alleged misconduct is yet to be gone into.
We therefore think that damages to the tune of Gh¢40,000.00 is prejudicial to the investigations which is yet to be conducted into the alleged improper conduct of the respondent. What in our opinion the respondent can fairly get is a nominal amount in damages.
It is for this reason that this ground of appeal also succeeds and it is upheld.
From all of the foregoing, the appeal succeeds in part. The order of Gh¢40,000.00 damages awarded to the respondent is hereby set aside.
We, in the circumstances, would award a nominal damage of Gh¢2,000.00 to the respondent.
(Sgd.)
MARIAMA OWUSU
[JUSTICE OF APPEAL]
AGNES DORDZIE, J.A.:
I have beforehand read my learned sister’s lead judgment and I am in agreement with the success of the appeal but I have this to add.
The main contention of the appellants in the grounds of appeal and the additional grounds is the quantum of damages awarded the respondent. The respondent was reduced in rank and the order that quashed the decision of his employers to reduce him in rank put him back in his former position which means his lost emolument within the period was restored. The respondent it can be said suffered no economic losses.
What the law permits him to be entitled to in the circumstances is general damages. The question is how can that be quantified in the circumstance of this case.
McGregor on Damages at page 10 says “The object for an award of damages is to give the plaintiff compensation for the damage, loss or injury he has suffered.
The 40,000 cedis awarded the respondent in the court below was for trauma and distress, an injury which is tortuous in nature. The basic principle on which damages are awarded in tort is to put the plaintiff in a position in which he would have been if the tort had not been committed.
The order of the court quashing the decision reducing the respondent in rank had already restored him to his rank and in the emoluments he is entitled to.
In the circumstances nominal damages is a fair compensation to the respondent. I therefore agree that the 40,000 cedis be set aside and a nominal sum of 2,000 cedis be awarded the respondent as compensation for the inconveniences he suffered as a result of the breach of his rights to fair hearing.
(Sgd.)
AGNES M. A. DORDZIE
[JUSTICE OF APPEAL]
(Sgd.)
Kwofie, (J.A.) I agree ANTHONY H. KWOFIE
[JUSTICE OF APPEAL]